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Judgment
Ajit Singh, C.J
Five appellants, namely, Maliram Hazarika, Gopal Hazarika, Nabin Hazarika, Bhaskar Hazarika and Rupam Hazarika have been convicted under
Section 302/149 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/-, each with default stipulation. They have also
been convicted under Section 148 of the Indian Penal Code and sentenced to two years of rigorous imprisonment and fine of Rs.500/-, each with
default stipulation. However, the jail sentences are directed to run concurrently.
The victim of the incident was Golap Hazarika, aged about 55 years. He was a brotherof the appellants, namely, Maliram Hazarika, Gopal Hazarika
and Nabin Hazarika. Appellant Rupam Hazarika, being the son of Maliram Hazarika and Bhaskar Hazarika, being the son of Gopal Hazarika, are the
nephew of Golap Hazarika. They all lived in Golaghat District.Â
According to the prosecution case, at about 9 a.m., on 04/10/2008, when GobinHazarika went to tether cows in his land, the appellants assaulted
him with sharp weapons in the field. The wife-Charu Hazarika (PW-2) of Gobin Hazarika coming to know about the occurrence came to the place of
occurrence and found Gobin Hazarika lying injured on the ground. In the meantime, Cheniram Hazarika (PW-5), Sanku Tamuli (PW-6) and Krishna
Hazarika (PW-7) also arrived at the place of occurrence.
Maliram Hazarika surrendered in the Dergaon Police Station with a khukri. At that time,Constable Arun Bharali (PW-12), Siromoni Gogoi (PW-13)
and Constable Tankeswar Borah (PW-14) were present in the Police Station. The Khukri was seized in their presence, vide seizure list Exhibit 5.
Biren Borgohain (PW-15) was the then Officer-in-charge of the Police Station. He was also present at that time when Maliram Hazarika surrendered
and confessed before them that he had committed the murder of Gobin Hazarika over a dispute regarding partition of land.
In the meantime, Cheniram Hazarika, Sanku Tamuli and Krishna Hazarika carriedGobin Hazarika first to Amguri Civil Hospital and then to
Golaghat Civil Hospital. En-route they entered the Police Station and informed about the occurrence. While going to the Golaghat Civil Hospital, Gobin
Hazarika on being asked told Cheniram Hazarika, Sanku Tamuli and Krishna Hazarika that the appellants together had cut him. Gobin Hazarika,
however, succumbed to his injuries before he could reach Golaghat Civil Hospital. Charu Hazarika then lodged the First Information Report Exhibit-3
at the Dergaon Police Station, wherein she named all the appellants as assailants of her husband Gobin Hazarika.
After lodging of the First Information Report, Officer-in-Charge - Biren Borgohain wentto the place of occurrence and seized two solid bamboo
lathis vide Exhibit 2 seizure list in the presence of Nanda Barua (PW-1), Jagat Hazarika (PW-3) and Rebakanta Bora (PW-10). Subsequently, he
arrested other appellants and after completing the investigation submitted Exhibit 12 charge-sheet against all the appellants for offences under Sections
147,148 and 149/302 of the Indian Penal Code.
Dr. Syed Nazaim Hussain (PW-9) conducted the post mortem examination on the deadbody of Gobin Hazarika. He found the following injuries on
the dead body:-
i. one sharp cut injury measuring 3†x 1†x ½†over the scalp on the occipital region with fracture on underlying occipital bone resulting in
laceration of brain underneath which caused intra-cranial haemorrhage.
ii. one sharp cut injury measuring 2†x 1†x ½†on the left hand.
iii. one sharp cut injury measuring 4†x 1†x 1†over right leg with fracture of tibia bone.
 iv. Bruise measuring 3â€x ½†x ½ “ over right side of face. v. Bruise measuring 3â€x1â€x ½†over abdomen.
According to him, death was due to the injuries sustained as described, as a result of shock and hemorrhage due to head injury. This post mortem
examination report is Exhibit-4.
During trial, the appellants abjured their guilt and pleaded innocence. They adducedthe evidence of Babadhar Barua (DW-1) and Mridul Borah
(DW-2) to prove that on the date of occurrence, eye witness Nanda Barua was not present at the place of occurrence, but was present in Golaghat
Civil Hospital as an attendant. However, the trial court, relying upon the evidence of Nanda Baruah, Cheniram Hazarika, Sanku Tamuli and Krishna
Hazarika, convicted and sentenced the appellants as aforesaid.
It is argued on behalf of the appellants that the evidence of Cheniram Hazarika, SankuTamuli and Krishna Hazarika are not reliable and the same is
an afterthought and subsequently improved. It is doubtful as to whether Gobin Hazarika, indeed, disclosed before them that the appellants had
assaulted him. It has also been argued that conviction based on the sole testimony of the eye witness Nanda Barua is unsafe as there is no
corroboration to his testimony. The learned Public Prosecutor has submitted that the conviction is rightly based on the evidence of sole eye witness
and the testimonies of Cheniram Hazarika, Sanku Tamuli and Krishna Hazarika are reliable and as such, the impugned judgment does not warrant
interference.
After hearing the learned counsel for the parties and perusing record, we find theevidence of eye witness Nanda Barua partly reliable and
trustworthy. He has deposed that on the date of occurrence he was reaping grass in the field. He heard a hue and cry and saw a person being
assaulted. He came towards the place of occurrence and saw the appellants assaulting Gobin Hazarika. He has specifically deposed that he saw
Maliram Hazarika assaulting Gobin Hazarika with a dao and other appellants with thick heavy sticks. When he asked as to why they were assaulting
him, Maliram Hazarika charged him with the dao and being afraid, he ran away. He, however, during investigation immediately after the occurrence,
stated before police that he saw Maliram Hazarika cutting Gobin Hazarika with a khukri whereas Rupam Hazarika and Bhaskar Hazarika assaulted
him with thick bamboo lathis. He also categorically stated during investigation that although he saw Nabin Hazarika and Gopal Hazarika at the place
of occurrence, he did not see them assaulting. Therefore, his earlier version before police is different from the one he has made in the court. As such,
it is apparent that he indeed saw Maliram Hazarika cutting Gobin Hazarika with a khukri. Likewise, he also saw Rupam Hazarika and Bhaskar
Hazarika assaulting Gobin Hazarika with thick bamboo lathis. But, he improved materially in the court by implicating even Nabin Hazarika and Gopal
Hazarika as the assailants of Gobin Hazarika. It is, therefore, doubtful that Nabin Hazarika and Gopal Hazarika had actually taken part in the assault
or were members of the unlawful assembly. It is probable that they might be present at the place of occurrence, but there is nothing to show that they
either took part in assaulting Gobin Hazarika or shared common object with Maliram Hazarika, Rupam Hazarika and Bhaskar Hazarika. There is
every likelihood that they being the members of the same family of the other three appellants, had been implicated falsely. Besides, his testimony is
supported by cogent medical evidence inasmuch as Gobin Hazarika sustained cut injuries, which were inflicted by Maliram Hazarika with a khukri and
two bruises, which have been caused by Rupam Hazarika and Bhaskar Hazarika with thick bamboo lathis. It is also to be noted that during
investigation only two lathis were recovered from the place of occurrence vide Exhibit 2 by Biren Borgohain. From the evidence of Nanda Barua, it is
proved beyond doubt that Maliram Hazarika assaulted Gobin Hazarika with a khukri and Rupam Hazarika and Bhaskar Hazarika with their thick
bamboo lathis, which resulted into his death.
The evidence of Nanda Barua that Maliram Hazarika assaulted Gobin Hazarika with akhukri also finds corroboration from the evidence of
Constable Arun Bharali (PW-12), Siromoni Gogoi (PW-13), Constable Tankeswar Borah (PW-14) as well as Biren Borgohain (PW-15), who have
unequivocally deposed that Maliram Hazarika surrendered in the Police Station with a khukri and the same was seized vide Exhibit 5. Constable Arun
Bharali, Constable Tankeswar Borah and Biren Borgohain being public servants have no occasion to depose falsely against the appellant-Maliram
Hazarika.
Though, Cheniram Hazarika, Sanku Tamuli and Krishna Hazarika deposed that GobinHazarika made the oral dying declaration before them that all
the appellants had cut him, the same is not entirely reliable. Oral dying declaration being a weak piece of evidence requires corroboration by cogent
evidence. All the aforesaid witnesses admittedly accompanied Gobin Hazarika when he was taken to the Golaghat Civil hospital. Sanku Tamuli has
categorically deposed that en-route to the hospital on his asking Gobin Hazarika told him that the appellants had cut him. During his cross-examination,
he admitted that he was accompanied by Cheniram Hazarika, Krishna Hazarika, Charu Hazarika and Brindaban Hazarika and as such, it is very
natural that all of them would have heard Gobin Hazarika’s oral dying declaration. But, Charu Hazarika, being the wife of Gobin Hazarika, did not
depose that Gobin Hazarika made such an oral dying declaration. She did not even state as such in her First Information Report and also before
police during investigation. Cheniram Hazarika deposed in court that when he saw Gobin Hazarika lying injured he went to him and gave him water to
drink. Then Gobin Hazarika told him that the appellants assaulted him. But during his statement before police, he stated that while carrying him to
the Hospital, Gobin Hazarika made the dying declaration implicating all the appellants. So, his deposition is inconsistent and as such not reliable.
Though, Krishna Hazarika has also deposed that on being asked by Sanku Tamuli, Gobin Hazarika disclosed that the appellants had cut him, it is not
safe to be relied upon as Gobin Hazarika was in a critical condition with injuries on his head and as such, it was most unlikely that he was in a
condition to speak and had made such oral dying declaration. Therefore, we have serious doubt regarding making of oral dying declaration by Gobin
Hazarika implicating all the appellants.
Although, Babadhar Baruah (DW-1) deposed that he saw Nanda Barua in GolaghatCivil Hospital on the date of occurrence, he could not
substantiate his testimony during his cross-examination. Similarly, Mridul Borah (DW-2) also deposed that he saw Nanda Barua in the said hospital on
the date of occurrence and he talked to him. But, during his crossexamination, he admitted that he did not talk to Nanda Barua and he was in fact
working in the Blood Bank situated on the first floor of the hospital and the patients do not stay there.
Thus, the evidence of both the defense witnesses are not reliable.
For these reasons, we are of the considered view that Maliram Hazarika, RupamHazarika and Bhaskar Hazarika are the perpetrators of the crime
and as such they are guilty of committing an offence under Section 302/34 of the Indian Penal Code. Accordingly, we alter their conviction and
sentence them to suffer imprisonment for life and fine of Rs.500/each or in default to undergo simple imprisonment of two months. We also hold
Nabin Hazarika and Gopal Hazarika not guilty of the offences under Sections 148 and 302/149 of the Indian Penal Code and acquit them forthwith by
giving them the benefit of doubt. Both Nabin Hazarika and Gopal Hazarika are in jail. They are directed to be released forthwith. As Nabin Hazarika
and Gopal Hazarika have been acquitted of the offences charged, the ingredients of Section 141 of the Indian Penal Code for constituting an unlawful
assembly are not attracted for conviction of appellants Maliram Hazarika, Rupam Hazarika and Bhaskar Hazarika under Section 148 of the Indian
Penal Code (they being only 3 in number). They are, therefore, acquitted of the charge under Section 148 of the Indian Penal Code. The impugned
judgment is modified to the extent as indicated hereinabove.
The appeal is partly allowed.